Attorney General's Opinion 1976-77 #210

May 20, 1977

THE HONORABLE JOHN W. GARBER,
Director Department of Personnel and Training

76-77 210

This is in reply to your recent letter in which you make the following inquiry:

"We are requesting an opinion concerning provisions of the Privacy Protection Act of 1976.

"We have been operating under the provision of § 2.1-382(B) which provides: 'Nothing in this section or found elsewhere in this chapter shall be construed so as to require an agency to disseminate any recommendation or letter of reference from or to a third party which is a part of the personnel file of any data subject.'

"Our State agencies are concerned about an apparent conflict between the Privacy Protection Act of 1976 and the Virginia Freedom of Information Act.

"Letters of reference from previous employers are meaningful only if confidentiality can be protected. Can we continue to exclude such letters of reference in accordance with provisions of the Privacy Protection Act of 1976 when employees request the right to examine individual personnel records?"

The Virginia Freedom of Information Act provides that, except as otherwise provided by law, State agencies are required to permit an agency employee access to his or her own personnel records. See §2.1-342(b)(3), Code of Virginia (1950), as amended. The Freedom of Information Act makes no special exception regarding letters of recommendation which may be contained in personnel files.

The Privacy Protection Act of 1976 governs the collection, use and dissemination of personal information concerning individuals by State and local governmental agencies. Personnel records maintained by State agencies clearly constitute "personal information," the dissemination of which is subject to the provisions of the Privacy Protection Act of 1976, §2.1-379(2). Section 2.1-382 of the Code sets forth in some detail the rights of individuals to examine, challenge and correct personal information maintained by State agencies. Section 2.1-382(B) provides specifically with respect to letters of recommendation:

"Nothing in this section or found elsewhere in this chapter shall be construed so as to require an agency to disseminate any recommendation or letter of reference from or to a third party which is a part of the personnel file of any data subject."

This provision is, in my view, designed to ensure that State agencies shall not disclose letters of recommendation to an individual who exercises his right to review personal information, including his or her personnel records, maintained by such agencies. My conclusion in this regard is confirmed by the legislative history of the Privacy Protection Act, which is set forth in the Report of the Virginia Advisory Legislative Council, Senate Document No. 27 (1976) at 9-10, as follows:

"The Council is concerned, though, that in affording individual access to personal information stored about such individual by the Commonwealth, such access should not be permitted to letters of recommendation or reference or similar writings, whether written by or to a State official or agency, which are used in evaluating an individual's suitablility for employment. Such letters are, and ought to remain, confidential."

To the extent that the Freedom of Information Act conflicts with the provisions of the Privacy Protection Act, which affords confidentiality to letters of recommendation, the latter and more specific statute is controlling. Accordingly, I am of the opinion that State agencies may refuse to permit an agency employee to examine letters of recommendation contained in the employee's personnel records.